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MBMOIR 



.. ..OR. .. 



HON. 6HARLES DOE 




Glass F3 ^ 



Book .T )C4 




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m: km:o I k 



Hon. CHARLES DOt 

LATE CHIEF JUSTICE 

OF 

THE SUPREME COURT OF NEW HAMPSHIRL 

BY 

JERF.MIAH SMITH. 
It 

Read before the Southern New Hampshire Bar Association, 
at Manchester. 

FEBRUARY 27, 1897. 



[REPRINTEU FROM PROCEEDINGS OF fHt Ajis6ciAf l6>i. j ' 



CONCORD: 

REFUHLICAN PRESS ASSOCIATION. 
1897. 



A. 

i 



Xa Ex eh. 



.XrKMOIU OF CHARLES DOE. 



W 15Y JEKE.MIAH SMITH, OF CAMBKIDGE, MASS. 



At the law term of the Supreme Court, held a few days 
after the death of Ciiief Justice Doe, honor was done to his 
memory by addresses from various members of the bar and 
of the beuch ; aud those addresses have since been published 
as an appendix to the proceedintrs of the last annual meeting 
of this Association. The appropriate and touching remarks 
made on that occasion pay ample tribute to the merits of 
our departed friend ; and, taken together, constitute an 
admirable summary of the salient points of his judicial 
career. But it did not fall within the province of any one 
speaker on that occasion to give a connected memoir of his 
entire life ; and hence it has seemed desirable to the 
officers of this Association that such a memoir should now 
be laid before you. 

Charles Doe; the late chief justice of New Hampshire, 
was the youngest child of Joseph and Mary Bodwell 
(Ricker) Doe. He was born at Derry, N. H., April 11, 
1880. Early in his childhood, the family returned to their 
former resilience in Somersworth (now Rollinsford), N. H., 
and took up their abode in the old homestead of the Ricker 
family. He was fortunate in his parentage. His mother 
was of a substantial New England family, the daughter of 
one of the leading citizens in that community, and the 
sister of Captain Ricker, whose gallant exploit in rescuing 
his vessel from French captors is narrated in Smith's N. H. 
Rei)orts, p. 4o2-:3. His father was a man of remarkable 
natural ability. Like his son, he had all his resources at 
command. In the New Hampshire legislature, he distin- 



guisbed himself in a running debate witb tbe tben king of 
tbe state, Isaac Hill. Tbe late Daniel M. Cbristie, at that 
time, I believe, one of tbe younger members, used to give a 
vivid description of tbe controversy. Governor Hill was, 
of course, one of tbe ablest men of his generation ; but be 
was, both by nature and habit, a writer rather than a 
speaker, and was accustomed to read bis views to the bouse 
from manuscript. Mr. Doe would instantl}^ rise and make 
a full oral reply. Governor Hill could not trust himself to 
rejoin by word of mouth, but bad to wait until he could go 
home, write another speech, and bring it in next day. 
Then, as on tbe previous day, as soon as tbe reading w^as 
finished, the member from Somersworth would immediately 
make a pungent off-band answer. Mr. Doe bad not only 
tbe mental alertness afterwards so conspicuous in his son, 
but, like him, he also bad the courage of his convictions. 
As a member of the Board of Trustees of a Savings Bank, 
be earnestly opposed a proposition to risk the mone}'^ of the 
depositors by taking stock in a new railroad, which it was 
boped would benefit the communit}-, though it might not 
enrich the stock-holders. When the majority outvoted him, 
be wrote out, and signed, upon the records of the board, a 
vigorous protest. The result of the investment was a total 
loss. His son's judicial action many years later, in the case 
of Fisher v. Concord E. E., 50 N.^H. 200, p. 204-206, was 
probably not uninfluenced by the father's conduct on this 
occasion, which he always remembered with great satisfac- 
tion. 

Cbarles Doe attended the academies at South Berwick, 
Exeter, and Andover. He spent one term at Harvard, and 
then entered Dartmouth college, where he graduated in 
1849 in the same class with his future colleague, Clinton 
W. Stanley. In college, be was not a diligent student. 
"Stanley and I," said be, "competed for the foot of the 
class, and I beat Stanley." He not only failed to study the 
prescribed text-books, but he did not even own some of them. 



5 

From the moment of his gradiialiou, liuwcver, lit' began 
a life of hard work. He soon entered the office of Daniel 
M. Christie, of Dover, and a[)|)lied himself diligentl}' to 
the study of law. Perhaps no office in the state has turned 
out more men who afterwards achieved ])rofessional success. 
At one time, three out of the six judges of the Supreme 
Court were old pu])ils of Mr. Christie's. Among his earlier 
students were Chief Justice Perley, and United States 
Senator John P. Male. I^ike most eminent lawyers in active 
practice, the head of the office had very little time in which 
to direct the studies of his clerks ; but they got a great deal 
from him indirectly. He was a man saturated with legal 
learning ; and a large amount of valuable matter gradually 
oozed out from him, and exercised a fertilizing iuHuence upon 
the young men around him. Then, as now, it was a usual mis- 
take of law students to do too much reading and too little 
thinking. Into this error Judge Doe did not fall. Before his 
admission to the bar he read fewer text-books than most 
students. If my memory of his statement is correct, he 
read not more than three, or, at the outside, four text-books, 
in addition to Kent's Commentaries. But these books he 
made his own. Meantime he gave careful attention to the 
business passing through the office, learning how to look 
up authorities, and how to handle reported decisions. At 
the close of his office pupilage he further pursued his 
studies at the Harvard Law School. Among his contempo- 
raries at that institution were an unusual number of men 
who have since attained legal eminence. 

In January, 1854, he commenced practice at Dover, where 
he continued until his appointment to the bench, having 
the late Charles W. Woodman as his partner for much of 
the time. At the very outset of his career he received the 
appointment of county solicitor ; which, by the way, was 
not conferred without Some hesitation on the part of the 
governor, due to the youth and inexperience of the candi- 
date. This appointment, whirli he held for two and a half 



6 

years, operated as an immediate introduction to court work ; 
and he came at once to the front, becoming per saltum one 
of the prominent members of the Strafford bar. The first 
time he appeared in court was when he opened the case of 
State V. Hodge, a prosecution for murder in the first degree. 
Besides the criminal business of the state, he liad a fair 
share of civil business, trying cases with success against 
such opponents as Daniel M. Christie, and John P. Hale. 
Probably his most important civil litigation was that locally 
known as "• The Kingman Case," where he was at first the 
junior of Ira Perley, and subsequently (after Judge Perley's 
reappointment to the bench) of John S. Wells. Few civil 
controversies have ever excited greater public interest in 
Strafford county; but as the trial on the merits took place 
before a board of referees whose decision was final, it does 
not figure in the reports except as to some questions arising 
in the preliminary stages of the litigation. (See 31 N. H., 
171 and 182.) The practice of the young lawyer was not 
confined to the Trial Terms. He argued cases orally at 
the Law Term, and was listened to there with marked 
attention. 

In certain respects he departed entirely from the prevalent 
method of trying jury cases. The wide license in cross- 
examination formerly allowed to Mason and his compeers, to 
enable them to break down a class of professional witnesses, 
was an evil still in full force ; and so was the practice of inter- 
changing asperities between counsel. With the exception 
of the late Charles H. Bell, no man in that part of the state 
did so much to break up these practices as the young 
Charles Doe ; and he, like Governor Bell, accomplished this 
end by the force of his own example. He treated the wit- 
nesses of the other side with civility ; and refrained from 
" spats " with the opposing counsel. When Theophilus Par- 
sons became chief justice of Massachusetts, and insisted on 
stopping Samuel Dexter from making an argument not war- 
ranted by the evidence, the learned counsel retorted, " Your 



Honor did not argue yuur own cases in iIk; way you recjuire us 
to." "Certainly not," was the reply, "hut that was the 
judge's fault, not mine."' Such a dialogue could not have 
taken place in the case of Judge Doe. The limits which 
he, as a judge, afterwards laid down for counsel, were the 
same which he himself had carefully observed when at the 
bar. His rejection of the old methods was strongly marked 
in the first trial in which he took part, the ca[)ital case 
already mentioned. The senior counsel for the defense was 
a man (now almost entirely forgotten) who had gained dis- 
tinction in what may be called the blackguarding method of 
trying cases. Better men had essayed to light him with his 
own weapons, and had failed for the very reason that they 
were better men. It did not seem to have occurred to the 
bar that there was any way of meeting him except by 
deseeiiding to his level and attempting to pay him back in 
his own coin. This man began the Hodge trial in his 
accustomed way, intending, no doubt, to stir up and con- 
fuse the young junior counsel for the state. To the intense 
surprise of the spectators, the new solicitor ignored the 
existence of the senior counsel for the defense. He did not 
seem to hear any of his irrelevant remarks, but went on 
putting questions and addressing the court just as if those 
remarks had never been made. The consequence was that, 
ere the end of the long trial, the counsel for the defense 
had "flattened out" as never before. 

Probably the pleasantest recollection of Judge Doe's 
early professional life was his association with a very re- 
markable student in his othce — the late Thomas A. Hender- 
son, of Dover, a graduate of Bowdoin in 1855, and of the 
Harvard Law School in 1861 ; who, at the conclusion of his 
legal studies, entered the Union Army, and died upon the 
battle-field in 1864, when Lieutenant-colonel of the 
Seventh New Hampshire Volunteers. For this unusuall}- 
gifted young man Judge Doe entertained the warmest re- 
gard, and I doubt whether he ever met any one whom 



he considered the intellectual superior of Colonel Hender- 
son. 

Charles Doe, though loving the law for its own sake, was 
not wholly absorbed in the practice of his profession. He 
entered earnestly into politics. His father was one of the 
old war-horses of the Democracy, and the son naturally at- 
tached himself to the same party. He was Assistant Clerk 
of the State Senate in 1853 and 1854; and was active as a 
stump speaker in the exciting campaigns which followed 
the repeal of the Missouri Compromise. 

All this time, however, he was looking forward to a legal 
future, rather than to political distinction. Stump speak- 
ing was taken up to overcome the extreme bashfulness of 
his early years. He afterwards said that his motive in 
making political speeches was to harden himself, so that he 
could address a jury without having his knees knock to- 
gether. But, when once embarked in active political 
work, he displayed there, as everywhere else, "the intense 
energy of his nature " ; and was generally reckoned a 
strong ''party man." Whatever other faults may have 
been laid to his account, no one has ever charged him with 
the defect which the apostle imputed to the church of the 
Laodiceans. Whichever view he espoused on any contro- 
verted question, he was wont to espouse it heartily. In 
those days there were immense land-slides from the Demo- 
cratic ranks. P'rom 1853 to 1858. it is safe to say that 
from five to ten thousand New Hampshire voters left that 
party. But Charles Doe not only remained in the ranks, 
but earnestly advocated the Democratic principles from the 
rostrum. He did not flinch when it was proposed to make 
him a political martyr by removing him from the office of 
county solicitor, which was done in 1856 by the governor 
upon an address by the legislature (then the common 
method of turning political opponents out of office). Ap- 
parently nothing could shake his devotion to the Demo- 
cratic party. Great, then, was the surprise when it began 



9 

to l>o rinnorcd in Deeeinher, 1858, or .laiiuary, IS.V.I. tliat he 
was about to take the stmiip for the Republicans, and ini- 
ineuse was the sensation when, earlv in 1859, he verilied 
the rumor. Republicans, while eagerly welcoming such a 
powerful recruit, could not sometimes refrain from express- 
ing; their wonder, not that he should have left the Demo- 
cratic party, but that he should have left it at that particu- 
lar moment, when few other men were doing the same 
thing, save those who had })reviously expressed dissatisfac- 
tion, and when there was no such immediate provocation 
as at some past elections. If a man had not been diiven 
out of the i)arty by the passage of the Nebraska bill in 
1854, by the Kansas troubles in 1856, by the Dred Scott 
decision in 1857, or b}^ the Lecompton bill in 1858, why 
should he bolt in the year 1859, when no new grievance 
was in the air? 

Twenty 3-ears later Judge Doe told me what the cause 
was which principally impelled him to sever his party rela- 
tions at that moment ; adding that he believed he had never 
before told it to any one. And when I relate it, I think you 
will not only see that it explains his action, but you will 
also see that he could not have stated it publicly at that 
time without placing a near relation in a most uncomforta- 
ble position. In his Democratic s[)eeches he had been accus- 
tomed to lay much stress on the im])ortance of preserving 
the Union, and had undoubtedly exhorted his hearers to 
consent to all reasonable compromises looking to that end. 
He had also made great use of the passage in Washing- 
ton's farewell address which contains a warninu' against 
the formation of geographical parties. The Kei)ublican de- 
baters who occasionally met him did not succeed in mak- 
ing effective rejoinders to this line of argument. All this 
time he, of course, assumed that the old Union was still 
in existence, not merely in name but in fact. Suddenly he 
was led to doubt the truth of his premises. The actual 
state of feeliu'i' in the South was made known to him from 



10 

a source calculated to carry immediate convictiou to his 
mind. The revelatiou came through one of his brothers 
who was settled in Virginia. Through the intercourse 
which he had at this time with that brother (either dur- 
ing a visit by Charles to Virginia, or during a visit by the 
Virginia brother to the old Northern home) the inside 
situation in the South became fully known to him. It 
was the information then received as to the prevailing 
Southern sentiment that induced him to make an immedi- 
ate change in his party affiliations. He now realized what 
the answer was to his own speech about the danger of 
breaking up the Union, an answer which his former Re- 
publican opponents had failed to make. It was this : " There 
is no Union now. The old Union is gone. Nothing re- 
mains but a shell ready to fall to pieces at any moment." 
He made up his mind that it was useless to compromise any 
longer; believing, as I suppose, that nothing would be 
effectual short of complete surrender to the demands of 
the extreme Southern leaders, and that the logical deduc- 
tions from Chief Justice Taney's opinion in the Dred Scott 
oase indicated the terms upon which they would insist. 
He announced himself a Republican, made a series of pow- 
erful speeches devoted largely to a discussion of the far- 
reaching effect of Chief Justice Taney's opinion, and gave 
no more thought to the possibility of compromise. When 
the Virginian brother, two years later, just before the firing 
on Sumter, wrote to Charles, imploring him to do his ut- 
most to prevent the threatened breach, he replied that, so 
far from making any attempt in that direction, he believed 
that the sooner the trouble came, the better ; it was inevi- 
table, and it was best to have it at once and have it over 
with. 

I have dwelt upon Judge Doe's change of political affilia- 
tion, not merely because it was an important crisis in his 
life, but also because it placed serious obstacles in the way 
of his success upon the bench, to which he was soon after 



11 

ai)i)()iutetl. The j)()litic;il tlK'niumu'tcr was then up to 
fever heat. Notwithstaiulint;- the fact that the issues were 
constantly changing, notwitlistanding the fact that in the 
years from 15S45 to IbtJl an enormous number of good 
citizens changed tlieir political allegiance, 3'et a large pro- 
portion of those who remained within the party organiza- 
tion were inclined to doubt the motives of all who quitted 
it, and were accustomed to regard tlieni as little better 
than traitors, f^ooking back now at the situation, it seems 
almost incredible that such a feeling should have existed, 
but it certainly did exist and was calculated to produce 
very uncomfortable results. In the light of history, we 
can now respect alike the motives of those who adhered to 
the old party and of those who left it ; but in those troub- 
lous times, toleration and charity were virtues not con- 
spicuoush' practised by any political organization. 

September 23, 1859, Charles Doe was appointed an asso- 
ciate justice of the supreme judicial court. Undoubtedl}-, 
some influential men favored his promotion on political 
grounds, but his legal qualifications were beyond dispute, 
and the two foremost lawyers of his section, Daniel M. 
Christie and Oilman Marston, both strongly recommended 
the appointment. The new judge was only twenty-nine 
years of age, but youth was not regarded as an objection 
to a judicial appointment in New Hampshire so much as 
it might have been in some other jurisdictions. The pro- 
motion of comparatively young men to the bencli was not 
then uncommon in this state. P'rom 1817 to 18G7, six 
lawyers were appointed to the highest court, of whom the 
eldest was only thirty-three, and the youngest twenty- 
seven. 

Judge Doe's official tenure was almost unique. Ap- 
pointed at twenty-nine, he continued on the bench, with 
the exception of the two years from 1874 to 1876, until his 
death, at the age of sixty-five, thus passing more than half 
his life in the discharge of judicial duties. That no man 



12 

could have enjoyed so lengthy a term unless his services 
had been, in the long run, acceptable, goes without saying. 
But at the beginning of his judicial career he met with 
violent and bitter opposition in certain sections of the 
state. At the start, there was a very strong political prej- 
udice against him. This obstacle, if it had been the only 
one, he would soon have overcome by his immediate mani- 
festation of ability and impartiality. But there were other 
causes of offense which alienated from him some lawyers 
who would naturally have been his closest friends. He 
was, from the very beginning, a reformer. He insisted on 
having cases tried civilly, expeditiously, and upon the 
merits.. Some bar leaders were unwilling to change the 
habits of a lifetime at the bidding of a younger man. The 
result in certain counties was a somewhat stormy season, 
which would have induced the majority of new judges 
either to submit to the old regime or resign their office in 
despair. Not so with Judge Doe. He stood his ground 
and carried his main points. In his mode of dealing with 
refractory counsel, as in most other things, he was original. 
Take, for instance, a scene in which one of the first law- 
yers of the state figured. When Judge Doe took his seat 
upon the bench he resolved that no counsel should ever, 
in his presence, be permitted to insult a witness, a resolu- 
tion prompted by the recollection of the treatment to 
which he himself had been subjected when a witness at a 
time prior to his admission to the bar. In the very first 
year of his service, a prominent lawyer, a man of char- 
acter, but accustomed to the old style of practice, began to 
cross-examine a witness in an objectionable manner. "Mr. 

," said the judge, "I do not suppose that you intend 

anything offensive to the witness, but your manner might 
be construed by others as indicating such an intention, 

and I suggest that you modify it." Mr. at once 

flared up, and replied that he should examine the witness 
in his own way. To his intense astonishment, the judge, 



13 

instead of coiuinittiiij;' liiin for coutciiipt, a move for which 
he was i)robal)ly [)re|)ared ami which might have <^aiiie(l 
him some i)0[)ular sN'mpathy, turned to the witness and 
said. " Mr. Witness, you need not answer any more of Mr. 

"s questions, unless you choose, and if you do choose 

to answer, you may do it in your own way." Mr. did 

not care to persist and take his cliance of being roundly 
cursed by the witness. He immediately abandoned the 
case and left the court room, swearing audibly as he went. 
I may add that the learned counsel afterwards resumed 
his former friendly relations with the judge; and that he 
wrote me years after (when the judge was out of liealtli) 
to express the earnest ho[)e that Judge Doe would not re- 
sign from the bench. 

Judge Doe early resolved never to commit counsel for 
personal disresjject to himself. But unruly members of 
the bar soon learned that there were other effective 
methods of keeping them in check. When a ])rominent 
lawyer, while engaged in a tiial, made an impertinent 
remark to the court, he was quietly told tiiat, unless he 
retracted that remark, his client would have to get other 
counsel. Whereu[)on the learned gentleman undertook to 
explain that he had not intended to use the iMiglish lan- 
guage in its ordinary meaning. 

In one or two counties, combinations were attempted to 
break up terms which Judge Doe was to hold, and these 
efforts were not entirely without success. In one county, 
a term which would naturally have lasted three \\eeks was 
ended in three days. In another county, it was whis[)ered 
with bated breath, that the leader of the bar would decline 
to try cases when Jiuige Doe was presiding, a resolution 
which was not adhered to. But it was ultimately found 
impracticable to solidify the bar against the judge. The 
lawyers whose methods of practice were unobjectionable, 
and the younger men, who were candid observers, were not 
inclined to follow the lead of their soreheaded brethren. 



14 

There was no clashing between Judge Doe and bar leaders 
of the type of William P. Wheeler and Edmund L. Cush- 
ing. Then, too, it gradually dawned even on his most per- 
sistent opponents, that the jury were inclined to sympa- 
thize with the court, and that hence a lawyer who made 
himself offensive to the bench was likely to lose the ver- 
dict. In one of the stormiest trials over which Judge 
Doe ever presided, a trial during which he was obliged 
continnally to restrain the counsel on one side, the jury 
formed the opinion that the judge thought the merits of 
the case were against the side he was so often constrained 
to check ; and this view undoubtedly exerted great influence 
upon the verdict, which was against the troublesome coun- 
sellors. In fact, the jury drew a wrong inference, for I 
happen to know that the judge, if himself a juror, would 
have returned the opposite verdict. 

The quality which, more than all tilings else, trium- 
phantly carried Judge Doe through these early difficulties, 
was his astonishing readiness. He had all his faculties at 
instant command. He not only possessed unusual legal 
knowledge, but he had also the power of applying this 
knowledge to facts, and with lightning-like rapidity. He 
was never puzzled or confused. He was not only able 
speedily to arrive at a correct conclusion, but was also 
able instantly to explain his views in short, crisp sentences, 
which completely disposed of the matter in hand, and fre- 
quently caused everybody to wonder how there could ever 
have been any doubt about the result. 

As in the case of some other eminent judges, the rapidity 
of his mental operations was sometimes too great for the 
comfort of slower men who were practicing before him. 
But gradually the bar and the bench came to understand 
each other. The lawyer realized that reasonable expedi- 
tion was desirable ; and the judge discovered that the 
majority of men were incapable of keeping up with his 
fastest gait. The result was, that the lawyers went as 



16 

rapidly as tlicy could, and thai tlit' judge ceased to urge 
them to go faster. 

In charging the jury, Judge Doe acted upon the maxim 
tliat the ])rinci[)al object of speaking is to make yourself 
understood. He once asked an associate : " Did you 
instruct the jury in the precise language set out in the 
reserved case?" ''Yes," was the leply. "'Well," returned 
Judge Doe, '"it is all sound law, and would have been 
admirable for an essay in a law review ; but the jury could 
not have got any idea from it." '' You do not," said he, 
'•want to use legal phraseology to the jury. In charging 
them, you should translate the law into farmers' and me- 
chanics' talk." In an important case in Cheshire county, 
where Caleb Cushing was counsel, there was an issue as to 
mental capacity, in respect to which 1)oth sides requested 
very fine-spun instructions. After hearing their suggestions 
the judge said: "I am going to tell the jury that if this 
man knew what he was about, tlie transaction will stand ; 
and, if he didn't, it won't." A look of unutterable disgust 
came over General Cushing's intellectual countenance, but 
neither party excepted. Whenever Judge Doe thought 
that justice required it, he did not confine himself to 
charging on the law, but also summed up on the facts: and 
if he was of opinion that one side had a weaker case than 
the other, he did not feel bound to conceal that opinion 
from the jury. A charge of his in a criminal case is proba- 
bly one of the shortest ever given: ''Gentlemen of the 
jury, I shouldn't want to convict the prisoner on this evi- 
dence, but you can do as you like." 

While Judge Doe was not very tirnily bound by prece- 
dent in civil cases, yet it was on the criminal side of the 
court that he dei)arted furthest from the old rules of pro- 
cedure. Knowing that the state cannot carry up excep- 
tions, he sometimes struck out an entirel}- new path. 
Before the passage of the Statute of 18(39. making resj)ond- 
euts competent to testily in their own behalf, it was very 



16 

common for counsel representing the accused to complain 
bitterly of the fact that their clients' lips were sealed; and 
to assert that, if they could only have the privilege of tes- 
tifying, they could satisfactorily explain all incriminating 
circumstances. Judge Doe had probably got very tired of 
hearing tliis sort of talk in cases where there was no rea- 
sonable doubt of guilt. One day, when a lawyer opening 
for the defense was making these stereotyped assertions, 

he was suddenly interrupted from the bench. " Mr. , 

you may put your clients on the stand." " What, your 
Honor?" "-You will be permitted to call your clients as 
witnesses on their own behalf." The learned counsel, 
gradually recovering from his astonishment, turned, and 
whispered to his junior: " Well, John, we shall have to put 
the rascals on, and the result will be a conviction." 

Judge Doe did not confine himself to tru'imj criminal 
cases. He sometimes investigated the preliminary question 
whether they ought to be tried ; and, if he came to a nega- 
tive conclusion, practically coerced the state's counsel into 
entering a nol iiro^.^ or accepting a plea that the respon- 
dent was guilty of a minor offense. If the state's counsel 
declined to accede to his view, he would sometimes, as a 
last resort, bluutly refuse to try the case. One of the most 
conspicuous instances of this was in the matter known in 
Grafton county as " the Haverhill school-house case," in 
which captious critics alleged that the judge "referred a 
criminal case, and appointed the witnesses." Judge Doe's 
own account of the matter was substantially as follows: A 
certain school district had an old and unfit school-house. 
The solid men of the district wanted to build a new one ; 
but the [)oll-tax payers, for some peculiar reason, objected, 
and voted down the proposal. Thereupon, the minority, in 
broad daylight, assembled together, and tore down the old 
buildino'. The result was, that the other faction got them 
indicted for a riot. The accused persons said that they 
were perfectly willing to bear the entire expense of build- 



17 

iiij^ anew scIkmiI-Ikmisi' in placu of the one destroyed; but 
that tliey would not plead guilty to a charge of riot. 
Much exuiteiueut })revailed in the neighborliood, and it 
seemed probable that attempted trials would result in 
repeated disagreements of the jury. Meantime, the dis- 
trict was without a school, and the children were growing 
up in ignorance. Judge Doe, after satisfying himself of 
the nature of the case, denie<l the motion of the state for a 
trial, and nuide an oi'der substantially as follows: 

This case is uot to be tried at the present term. Within 
thirty (?) days after the expiration of the term, Mr. William 
11. Cummiugs, of Lisbon, is to go upon the ground, and there 
hear A tell the story of one side, and B tell the story of the 
other side. Mr. Cummings is then to determine what sum each 
of the respondents ought to pay towards the erection of a new 
school-house. If the sums so assessed are paid, and the school- 
house is built, before the next term, then this case is not to be 
brought forward on the docket, but is to be regarded as dis- 
missed. 

Before the next term, the hearing had been had, the 
assessment made, the money collected, and the school-house 
built ; but the voice of the prosecutors was still for war. 
They moved that the i)revious order should be rescinded, 
and the case set for trial. The term was held by Judge 
Xesmith, whose racy Scotch-Irish humor many of us vividl}' 
remember. The motion was argued at great length in the 
old court-house at Haverhill Corner. When the learned 
counsel at last stopped (probably from sheer ph^'sical 
exhaustion), Judge Nesmith held up the sheet of paper 
upon which the offensive order was written, and said : 
"There does not seem to be anything immoral in this 
order. Indeed, it appears to have been made in the inter- 
est of the cause of education. If I were to rescind it, I 
should be saying that I was a bigger man than Judge Doe. 
In short, gentlemen, I wash mv hands of the whole matter." 



18 

The audience burst out laughing, and this was the end of 
" the Haverhill school-house case." 

During the first seven years of his judicial life, Judge 
Doe was not conspicuously prominent in Law Term work ; 
and his appearances in the reports were less frequent than 
those of most of his colleagues. (Each judge had then some 
discretionary power as to which of his opinions should be 
reported.) Judge Doe's earliest opinions appear in Vol. 
39. In the eight volumes from 39 to 46, his opinions 
average less than eight pages per volume, and of these only 
two (Underhill v. 3Ianchester, 45 N. H. 214, and Fifield v. 
Northern R. R., 42 N. H. 225) are comparable in ability to 
many wdiich he subsequently wrote. As late as 1866 one 
of his ablest colleagues expressed the hope "that Doe might 
yet make himself a name as judge." The speaker was a 
warm admirer of Judge Doe, but realized the fact that he 
had not yet erected enduring monuments on the printed 
pages of the Reports. Had he left the bench at that time, 
the fame of his great judicial ability would have rested 
almost entirely on the traditions of his Trial Term work. 
His first contributions to the Reports which excited the 
general interest and commendation of the profession were 
his dissenting opinions in two cases in 47 N. H. (published 
in 1869) : Boardman v. Woodman, 47 N. H. 140 and Ken- 
dall V. Broumson, 47 N. H. 196. After 48 N. H. he did his 
full share in filling up the volumes. 

Any one who examines his work will discover that he 
had two very opposite methods of writing opinions ; some 
of his opinions being among the most concise in the books, 
hardly containing more words than the head-note (indeed, 
in one instance, containing fewer words) ; while others are 
among the longest to be found in the Reports. The inquiry 
suggests itself : Why should a man, who had shown him- 
self capable of writing such admirable short opinions, so 
often write extremely long ones ? One reason is tlmt he 
was in the minority in some of these cases, and was natur- 



19 

ally anxious to fully justify his dissent. See, for instance, 
besides the two cases in 47 N. H. already referred to, State 
V. Pike, 49 N. H. 408, Hale v. Hverett.'sS N. H. 133, and 

Orr V. Quimhy, 54 N. H. 003. There are also other cases 
where there was originally a division in the court, although 
that fact is not stated in the I^cporls. Thus in Aldrich v. 

Wrii/ht, 53 N. H. 398, popuUirly known as '• The Mink 
case," a majority of his colleagues had in his absence 
decided the case the other way (i. e., "other" from the 
result finally reached), and had announced their decision. 
The opinion of Judge Doe, which now apj)ears in the book 
as the opinion of the whole court, was originally written to 
convince his brethren of their error, and had the desired 
effect. Again in Lisbon v. Lyman, 49 N. H. 553, though 
no dissent is expressed, yet the court were not in fact 
unanimous upon the last point, so elaborately discussed in 
the opinion, pp. 582-605. 

But there is another reason for the unusual fulness of 
some of Judge Doe's opinions. He foresaw, and answered 
in advance, objections not yet raised. Like Pascal, he had 
foresight which revealed to him " objections unknown to 
his generation, and which inspired him with the idea of 
fortifying and intrenching positions which were not [yet] 
threatened." 

A further reason for the length of some opinions may be 
found in the writer's unwillingness to adopt implicitly the 
statements and reasoning of other men. Even when he 
substantially concurred in results, he frequently preferred 
a new method of statement and a new process of reasoning. 
Right here, in my belief, is to be found some of the most 
valuable work which he has ever done. It was not enousfh 
for him that his predecessors had rejected erroneous conclu- 
sions. He insisted that the '"■ negation of error " siiould 
not be based upon erroneous grounds. See, for example, 
an elaborate discussion covering thirty-three pages in On- v. 
Quimby, 54: N. H. ;>. (305-638. "The obscurity of over- 



20 

elaboration " is a phrase once applied to one or more of 
Judge Doe's opinions by his warm friend and admirer, 
John M. Shirley. But that criticism is well founded in 
only a few instances. Undoubtedly, ideas are sometimes 
repeated, but the repetition is clothed in another form of 
words ; the purpose being to reach different classes of 
readers through different forms of expression. And in 
these cases of repetition there will generally be found at 
the close a single forcible sentence summing up the whole 
discussion. 

After making all deductions that can reasonably be 
claimed, the fact remains that no other judge has enriched 
the New Hampshire Reports with so many able opinions, 
and that some of these opinions compare favorably with 
the best that have been promulgated in other jurisdictions. 

If this memoir were prepared for the especial use of 
persons who were strangers to his work, it might be desira- 
ble, at this point, to enumerate some of Judge Doe's most 
important opinions, and to give a few extracts showing his 
method of investigation and his judicial style. But it 
cannot be necessary to do this before an audience composed 
of New Hampshire lawyers, who are already familiar with 
these decisions. 

You may be astonished to hear me say that these numerous 
printed pages do not represent the most valuable Law Term 
work of the late chief justice. Yet such is the fact. His most 
important work is not, and cannot be, represented in print. 
It consists of the services which he rendered in the consul- 
tation room. No complete estimate can be formed of the 
value of a judge's work except by those who know the part 
he played in the private deliberations of the court. Here, 
as elsewhere, Judge Doe was conspicuously useful, not 
only in bringing about right decisions but in preventing 
wrong ones. He seldom failed to discover instantly the 
vital point of each case, and could always give strong- 
reasons for his conclusions. The celebrated jurist, John 



21 

Austin, once said ot" himself, that il he liad any s[)ecial 
intellectual vocation, it was that of untying knots. A 
similar claim might well have been made by Judge Doe. 
His colleagues can have no difficulty in recalling cases 
where he found a way for the court out of what seemed a 
hopeless labyrinth. One of his associates, who went upon 
the bench with a ])retty strong j)rejudice against him, 
afterwards said that he had never seen any other man who 
could hew his way out of a dil'ticulty so expeditiously and 
so neatly. 

It was not the least of Judge Doe's merits in the con- 
sultation room that he had not that excessive pride of opin- 
ion which handicaps so many men. Before the statute of 
1874, the judges were accustomed to sit at the law terra 
in cases where their own trial term decisions came up for 
revision. Some rulings made by Judge Doe upon a cer- 
tain trial in Coos county Avere subsequent!}' overruled at 
the law term. The opinion was read by Judge Nesmith, 
and commented with unusual severity on the mistakes 
made at the trial. Mr. William Burns, the counsel whose 
exceptions were thus triumphantly sustained, hurried up 
to the bench and borrowed the manuscri[)t of Judge Nes- 
mith to gloat over it at his leisure. What was his aston- 
ishment at finding that every word of the opinion was in 
the well-known handwriting of Judge Doe I A difference 
with a colleague on a question of law was not regarded 
by Judge Doe as affording matter of personal grievance. 
With his radical tendencies, he was not unfrequently 
found differing from Chief Justice Bellows, who was an 
admirable specimen of the conservative lawyer of the old 
school. Yet the younger man regarded his older col- 
league with an almost filial affection. Judge Doe usually 
bore it with equanimity when he found himself in a pres- 
ent minority. He generally had faith to believe that his 
views would ultimately prevail, and this faith was not un- 
frequently justified by subsequent results. Sonic of his 



22 

most heretical dissenting opinions were finally pronounced 
orthodox. Perhaps the strongest instance, under all the 
circumstances, is the view which he expressed in his soli- 
tary dissent in Boardman v. Woodmaii and again in State 
V. Pike, as to the admissibility of the opinions of non- 
expert witnesses upon a question of sanity. This view, 
after being thrice rejected by a court of which he was him- 
self a member, was finally adopted as law by a court from 
the membership of which he had been carefully excluded, 
i. e., by the court which existed from 1874 to 1876. (See 
ffard^ V. iMerrill 56 N. H. 227.) 

The branch of hxw which, more than any other, he as- 
sisted in renovating and improving was the department of 
f)rocedure. In most jurisdictions, reform in this respect has 
been left to tlie legislature ; and their attempts have too 
largely resulted in substituting one set of technicalities for 
another, and in giving occasion for volume upon volume of 
Practice Reports. (See 53 Albany Law Journal, pp. 151, 
152.) But the New Hampshire court, in Judge Doe's day, 
did not feel constrained to sit with folded hands, waiting 
for the legislature to enact a poorly-drawn code. Instead 
of this, the judges proceeded to simplify practice by their 
own decisions ; not merely by discouraging formal objec- 
tions, but by boldly declaring that '' parties are entitled to 
the most just and convenient procedure that can be 
invented," and by distinctly recognizing "• the judicial duty 
of allowing a convenient procedure as a necessary instru- 
ment of the administration of the law of rights." (See 
the very able opinions in Metcalf v. Grilmore, 59 N. H. pp. 
431 to 435, and Owen v. Weston, 63 N. H. pp. 600 to 605.) 
The result is a flexibility of remedies in New Hampshire 
not surpassed by any of the so-called "' Code States " ; and, 
further, the absolute certainty that cases will be decided on 
their merits and that justice will not be "strangled in the 
net of form." It should not, however, be understood that 
these changes are owing: solelv to the efforts of Judg^e Doe. 



28 

Much crediL is due to otliurs; especially to Chief .lustice 
Bell, who drew up the admirable " Rules for Regulating the 
Practice in Chancer}*," 38 N. H. 605-624 ; a work which 
Judge Doe said " constituted Judge Hell's monument." 
But, after making all due allowance to otiiers, it remains 
undeniable that credit for the improvements in New Harap- 
sliire procedure is due more to Judge Doe than to any other 
one person. It was not merely what he gave utterance to 
as a Law Term judge. It was the general tone imparted 
to legal proceedings by his vigorous personality. To bor- 
row a metaphor from a sketch of an eminent English judge, 
we may say that his presence in the court room was like a 
'• healthy breeze in an overladen atmos|)here." Judge Doe's 
mode of life and all his habits were democratic and simple 
in the extreme; and his love of simplicity led him, when 
presiding alone at nisi prius, to go far towards abolishing 
the mere forms and ceremonies which are usually observed 
in the court room. But there was no omission of any inci- 
dent of procedure which was really essential to the rights 
of suitors. 

When Judge Doe had been on the bench nearly fifteen 
years, a political overturn took pla€e in New Hampshire; 
followed by the customary •' remodelling" of the judiciary; 
i. g., the legislative abolition of the existing court and the 
institution of a new court under a slightly different name, 
some of the members of the old tribunal being reappointed 
and others dropped. Nothing can be more absurd or perni- 
cious than these so-called reorganizations of the court. 
Nominally, a New Hampshire judge is commissioned to serve 
" during good behavior," until he reaches the age of seventy. 
In reality, his appointment holds good until the next state 
election. The judicial tenure is less secure here than in 
those states where the office is directly elective ; for in those 
jurisdictions the judge wiio has been chosen by popular vote 
is reasonabl}" certain of being allowed to serve out the lull 
term of years for which he was elected. It must not, how- 



24 

ever, be understood that the politicians who came into 
power in 1874 were sinners above all other men because 
thej' abolished the then existing court. On the contrary, 
they were simply following a bad precedent set by their 
political opponents. Indeed, the very court they were 
demolishing owed its birth nineteen years before to a simi- 
lar abolition of a preceding tribunal. The example set by 
the congressional supporters of Jefferson in 1801, by the 
New Hampshire Federalists in 1813, and by the New 
Hampshire "Know Nothings" in 1855, was, unfortunately 
but not unnaturally, followed by the New Hampshire 
Democrats in 1874, and again b}^ the New Hampshire 
Republicans in 1876. The theory that these last two reor- 
ganizations were designed solely to get rid of weak and 
inefficient members of the court is effectually disproved by 
the solemn fact that the Democrats, in 1874, failed to retain 
Charles Doe, and by the equally solemn fact that the Repub- 
licans, in 1876, failed to retain William S. Ladd. 

Judge Doe made no complaint of the customary decapita- 
tion. On the contrary, he enjoyed the vacation thus afforded 
him. Upon his marriage, in 1865, to Edith Haven, daughter 
of George Wallis Haven, Esq., of Portsmouth, he had settled 
at the old family homestead in Rollinsford, He now spent 
two years of rest from court work at his })leasant home, 
giving much thouglit to the best methods of educating his 
children, spending a good deal of time among his trees, 
and incidentally making use of this leisure to bring up 
some arrears of reporting. Various attempts were made 
during the interval to engage his services as counsel and as 
referee ; but they were all unsuccessful. He also declined 
to accede to the substantially unanimous desire of his 
political friends that he would accept a congressional 
nomination. 

When the state "turned over again," in 1876, and a new 
court was established, the appointment of chief justice was 
tendered to Judge Doe without the slightest hesitation on 



25 

tlie jiart of the executive. But the offer was not acce|)te(l 
until after very great hesitation on tiie part of tlie i-ecipi- 
eiit, who Avas reluctant to (juit his pleasant Ikiuic life. I 
was then on the invalid list, and completely (Uit of i)rac- 
tice. Hence Judge Doe came to me. as to one who was a 
disinterested witness, and j)ut me through a very searching 
cross-examination as to the real reasons for the apparent 
desire that he should fill the office. He was willincr to ac- 
cept only in case he could be satisfied that he was really 
the first choice of the better element at the bar. He feared 
that the alleged desire of some lawyers for his appoint- 
ment was due mainly to their dread of the selection of a 
still more unpopular person in the event of his declination. 
If he was wanted merely to keep out another man, he did 
not care to be used in that way. He distinctly remem- 
bered the days when he was j^ersona non grata in certain 
sections, and it was difficult to persuade him that a very 
different sentiment towards him now ])revailed. I called 
his attention to the fact that some of the bar leaders who 
formerh' opposed him had now passed away ; that otiiers 
no longer occupied their former commanding position ; and 
that still others (including some of the worthiest) had 
come to understand him better and now fully appreciated 
his services. But what I think made more impression \\\)0\\ 
him was my insistence upon the fact, that a new genera- 
tion had come upon the stage during the seventeen years 
which had elapsed since his first appointment, and that the 
best of these younger lawyers were his warm friends and 
enthusiastic admirers. I remember asking him if he 
thought that a combination could now be successfully made 
to break up one of his terms in the county of A, if Mr. X 
should oppose it ; or in tlic county of B, if Mr. Y should 
op[)ose it ; X and Y being men who in 1S59 were un- 
fiedged law students or inconspicuous juniors, but who in 
187*> stood in the front rank and were among his hearty 
friends. 



26 

About two years after his return to the bench, an 
arrangement was made by his colleagues, whereby he was 
excused from the bulk of the Trial Term work in considera- 
tion of his giving extra time and attention to the Law 
Term business. The result has been that, though the chief 
justice was constantly engaged in his judicial labors, he 
was not so much before the public as heretofore, and 
hence many of the younger members of the bar have had 
but little personal knowledge of him. 

One feature of his services as chief justice should be espec- 
ially mentioned ; and that is, the attempt to improve the style 
of reporting; an attempt which has borne good fruit, though 
resulting at times in delays which are much to be re- 
gretted. As is well known, the statements of facts and 
the head-notes in the New Hampshire reports have usually 
been prepared in each case by the judge delivering the 
opinion. (See Reporter's note, 49 N. H. pj). vii, viii.) 
This work in the earlier volumes was generally well done. 
But in 1850 (Laws, chap. 961, section 5), the legislature 
put a premium on judicial prolixity, by enacting that each 
judge, in addition to his regular salary, should also be paid 
for all matter furnished to the reports at a certain rate per 
each printed page. The more voluminous the report, the 
larger the compensation. This absurd provision was re- 
pealed in 1855 (Laws, chap. 1659, sections 33 and 36); but, 
meantime, the practice of lengthy reporting, though not 
adopted by all judges, had become common. Judge Doe 
began very early to shorten the voluminous statements of 
the reserved cases in making up his own contributions to 
the reports. And when he became the head of the court 
in 1876 he brought about a concert of action among the 
judges with a view to the preparation of concise statements 
and accurate head-notes, as well as a careful revision of 
opinions and an elimination of dicta. 

¥ov nearly twenty years. Judge Doe was the official head 
of the legal profession in New Hampshire. But he really 



27 

occupied a much hitrher position. By the general con- 
sensiis of his conteni[)oraries he was the foremost man of 
the profession in the state; foremost, not merely in nanic or 
in official position, but in fact. Many lawyers would un- 
doubtedly be willing to make a much stronger statement. 
They would agree with me in saying, that, of all the n)en 
whom we have intimately known, not in the law only 
but in all walks of life, this man was the ablest. 

If 1 were to sum up in a single sentence the cause of 
Judge Doe's intellectual superiority, I should ascribe it to 
the fact that he united in himself qualities of the highest 
order, which are so diverse that they are seldom found com- 
bined in one person. He had a remarkable memory, a 
quality which sometimes exists " in disproportion to other 
mental faculties." But no one would have said of him 
what Robert Lowe (Lord Sherbrooke) was wont to say of a 
certain great historian, that ''his memory had swam[)ed 
his mind." On the contrary, he had also a remarkable 
power of clear thinking. Again, he had extraordinary 
quickness of percei)tion and facility of ex[)ression, qualities 
which are apt to be relied upon by their possessor to the 
exclusion of patient investigation. Yet Judge Doe, despite 
the astonishing rapidity of his mental operations, fully 
realized that in many instances nothing avails except indus- 
trious research ; and there was no end to the amount of 
drudgery he would go through. One might saj^ of him 
what Cecil is reported to have said of Sir Walter Raleigh, 
" I know that he can labor terribly." 

Intellectually he was, above all things else, original. In 
a humorous sketch read b}- a bright young lawyer before a 
Bar Association, Doe, C. J. is represented as rendering a 
certain decision and giving as the sole reason "that the law 
has hitherto always been understood to be otherwise." This 
was, of course, a playful exaggeration: but it is true that 
the novelty of a ))roposition did not t'nrnish to his mind 
a pr'nna facie presum[)tion against its adtjption. As was 



28 

said of another, "he first looked at ever}' question as if it 
were entirely a new one, and then allowed the judgments 
of the past to have due weight." Novelty had, undoubt- 
edly, some charm for him, especially as to methods of 
reaching conclusions. He sometimes preferred to strike 
out a new path of his own '• across lots," rather than go 
around by the beaten road. His one controlling desire iu 
every case was to do exact justice, and if this end could 
not be accomplished save by setting at naught the so-called 
" wisdom of our ancestors," he did not hesitate to go to 
that extremity. He was not guilty of "that shrinking 
from responsibility " which Martineau justly stigmatizes as 
"■ the modern form of treason to the state." 

It will surprise many persons to know that Judge Doe 
was not what would be called "a general reader." He 
was not in the habit of reading unless he had a special 
object. Whenever he was investigating a subject, he was 
indefatigable in research, and examined everything that 
could have an important bearing. Nor were his studies on 
such occasions confined to law books. For instance, when 
preparing his dissenting opinion in Hale v. Everett^ 53 
N. H. 133, he spent weeks, and probably months, in read- 
ing historv and theology. But he never read for the mere 
sake of reading ; nor did he make use of light literature as 
a mental rest or recreation. I believe it to be the fact that 
in his whole life he read only one novel, and not more 
than three other books outside of his special studies. 

Socially, Judge Doe was one of the most delightful of 
men. He did not reserve himself for great occasions, but 
always abounded in good sayings. Few persons have ever 
spent an hour in his company without carrying away some- 
thing to remember him by. He was not an overpowering- 
talker, who did not know how to listen. Nor was he one of 
those who carefully prepare their bright remarks. On the 
contrary, the best things ever heard from him were in the 
nature of what Sydney Smith would have called "trump- 



20 

ing," i. «?., off-hand eomineiits on, or replies to, remarks 
made by others. His fun answers the deseri])tion recently 
given in tlie case of another distinguished judge: It was 
" sj)ontane(>us, ai»})Osite, and instantaneous." It should be 
added that, unlike some humorists, he could appreciate a 
joke of which he was himself the subject. I doubt whether 
any one enjoyed more than he the well-known story as to 
the advice given by an eminent lawyer to the examining 
committee of the Grafton bar ; advice which (as Judge 
Doe himself said) so clearly marked the learned counsel- 
lor's utter contempt for the court. Judge Doe's strong 
sense of humor, though usually restrained upon the bench, 
crops out in the opinion in DeLancey v. Inn. Co.^ b'l N. H. 
pj^. 587 to 591. A few years ago, when the arguments 
and intiuence of the insurance companies seemed certain to 
defeat a bill pending in the Massachusetts legislature, a 
member rose, with the '-Fifty-second New Hampshire" in 
his hand, and said that he should like to read to his col- 
leagues the opinion expressed by the supreme court of New 
Ham[)shire relative to insurance companies. Before the 
reading had progressed far, the house was convulsed with 
laughter, and there was no further effective opposition to 
the passage of the bill. 

But there was one thing which Judge Doe's friends 
prized far more than his intellectual ability or his conver- 
sational power, and that was his kindness of heart. As 
was said of Lord Bowen: "Of unkindness he was as in- 
ca[)able as of stui)idity."' I do not believe that any of our 
legal brethren have ever done more kind acts tlian he, or 
done them in a more quiet way. I will not speak here of 
charities in his neighborhood, or of his sympath}' and help- 
fulness in sickness (to which I can personally testify). 
But 1 think that sjK^cial mention should be made in this 
presence of his helpfulness to the members of his own pro- 
fession. He was the best friend I ever knew to law stu- 
dents, to young pi-actitioners, and to older lawyers who 



« 



30 



were on the point of assuming the unfamiliar duties of 
judicial position. His advice was always to the point, and 
given solely with a view to the good of the recipient. 

Our friend had great charity for the failings of others. 
He could "put himself in the other man's place," and real- 
ize the obstacles in his path. I once made a sarcastic 
remark to him about the conduct of a man of generally 
high character, who seemed to be in one instance unduly 
influenced by personal friendship. His reply was simph^: 
"Lord, lead us not into temptation." 

Although Judge Doe's death took the bar by surprise, 
yet his health had been very precarious at several periods 
during his judicial career. In the first six years of his 
term, he had two long seasons of illness ; and there were 
later occasions when he was obliged to desist from work 
for considerable intervals. He had naturally a strong con- 
stitution. The trouble was, that he could do nothing in 
moderation. The special task upon which he was engaged, 
whatever it was, always took complete possession of him, 
often occup3'ing his mind by night almost as completely as 
by day. He suffered much from insomnia ; and also under- 
went other physical ailments which nature is wont to 
inflict as penalties for overwork. His great mental powers 
remained unimpaired to the last moment of his life. He 
died suddenly, March 9, 1896, at the railroad station in Rol- 
linsford, while on his way to the adjourned law term at 
Concord. 

Twenty-three years earlier, his predecessor, Chief Justice 
Bellows, passed away suddenly at precisely the same period 
in the judicial year. What Judge Doe then said in regard 
to his friend maj' now, with a slight change, be applied to 
his own legal career : The lesson of his life is that of devo- 
tion to work. 



I 



Jc^% 



